The Seattle Times reported on the Washington Liquor Control Board's payment to settle a claim under the Open Public Meeting's Act. Read the full article titled "Liquor Board pays $192K to make public records gadfly go away" here.
As part of its 2014 Statement of Legislative Intent (SLI), the Seattle City Council requested that the City Clerk, the City Attorney’s Office and various executive departments form a PDR [Public Disclosure request] Task Force to: (i) identify shortcomings in the City’s current approach to fulfilling PDRs; and (ii) make recommendations regarding appropriate City-wide policies. See SLI 13-2-A-1. The Task Force briefing outline for the City Council (January 5, 2015) is available here.
Included in the preliminary recommendations are:
- Create a Citywide Public Records Act (CPRA) program to centrally manage the public disclosure function for complex requests.
- Strengthen support for Public Disclosure Officers.
- Develop centralized PDR Portal & tracking system that allows public access.
- Expand the PRA training curriculum.
- Measure customer satisfaction.
Washington Supreme Court Orders Attorney Fees And Costs To Requester For Agency's Violation Of PRA's "Brief Explanation" Requirement
The Public Records Act (PRA) requires that when an agency withholds or redacts records, its response “shall include a statement of the specific exemption authorizing the withholding of the record (or part) and a brief explanation of how the exemption applies to the record withheld.” RCW 42.56.210(3). In a 5-4 decision, the Washington Supreme Court held in City of Lakewood v. Koenig that an agency’s violation of this requirement entitles the requester to attorney fees and costs, regardless of whether the records were properly withheld.
In this case, David Koenig had requested records from the City of Lakewood relating to certain police officer incidents. In its response, the city redacted, among other things, driver’s license numbers from the records, citing to various statutory provisions without additional explanation. In a majority opinion written by Justice Steven González, the court found that the city’s response violated the PRA because the city either failed to cite a specific exemption or failed to explain how the particular statute applied to the redacted driver’s license numbers in the specific records produced. As a result, “the burden was shifted to the requester to sift through the statutes cited by the city and parse out possible exemption claims.” Opinion at 7-8. Because the PRA provides that costs and reasonable attorney fees shall be awarded to a requester for vindicating “the right to receive a response,” the court held that Koenig was entitled to his attorney fees and costs, including those on appeal. Id. at 10-12.
In explaining its decision, the court observed that the level of detail an agency needs to provide will depend on both the nature of the exemption and the nature of the document or information. For example, if it is clear on the face of a record what type of information has been redacted and that this type of information is categorically exempt, citing to a specific statutory provision may be sufficient. But for other exemptions, including the “other” statute exemptions that the city cited, “additional explanation is necessary to determine whether the exemption is properly invoked.” Id. at 8.
In a dissenting opinion joined by three other justices, Chief Justice Barbara Madsen asserted that the majority’s decision imposed an additional burden on agencies to provide enough explanation to prove its claimed exemptions are correct, which the PRA does not require. The dissent distinguished the facts in Sanders v. State, 169 Wn.2d 827 (2010), observing that, here, “the city explained what information it actually withheld—driver’s license numbers—and it explained why—the cited statutes.” Dissenting Opinion at 2. While the dissent acknowledged that attorney fees may be warranted if an agency fails to identify a record or give its reason for withholding, the dissent would have held that attorney fees are not independently warranted if the agency has identified the record and given its reason for redacting or withholding the record.
On November 25, 2014, the Everett [WA] Herald reported that a man has requested records from the Snohomish County Sheriff’s Office dating to July 4, 1776. Perhaps the requestor was not much of a student of history, as Snohomish County was created by the Washington Territorial Legislature on January 14, 1861 (out of Island County). Click here for the story.
Unfortunately, the Washington Public Record Act (PRA) does not provide ready relief to public agencies facing such absurd requests. Only if the requester is an inmate is there opportunity for relief. See RCW 42.56.565 authorizing injunctions to prohibit requests “made to harass or intimidate the agency or its employees.”
The Wisconsin Counties Association (WCA) is an unincorporated not-for-profit association of that State’s counties. The Wisconsin Professional Police Association submitted two requests for records to the WCA under the Wisconsin Public Records Law. Wisconsin courts previously recognized that under a ”totality of the circumstances” test an entity may be a quasi-governmental organization that resembles a governmental corporation and subject to the Public Records Law. That holding even applied to a private corporation. This is similar to the Washington court’s holding in Clarke v. Tri-Cities Animal Care and Control Shelter, 1444 Wn. App. 185 (2008). There, the court applied the 4-part under Telford v. Board of Thurston County Board of Commissioners, 95 Wn. App. 149, review denied, 138 Wn.2d 1015 (1999). In the recent Wisconsin decision (September 18, 2014), the court applied a restrictive standard in rejecting the application of the Public Records Law to the WAC. The court relied on the fact that the WAC was an association and not a corporation. The court found that the Wisconsin legislation said “corporation,” and that is what the Legislature meant. This distinction will not likely apply in Washington, where the public disclosure laws broadly defines “agency.” See RCW 42.17A.005 (campaign finance) and RCW 42.56.010 (Public Records Act). And, Washington courts will apply a “functional equivalent” test to determine whether an entity should be subject to the Washington Public Records Act. The elements of that test are: (1) whether the entity performs a governmental function, (2) the level of government funding, (3) the extent of government involvement or regulation, and (4) whether the entity was created by the government.
Washington Appellate Court Addresses, Again, PRA Statute Of Limitations For Single Production Responses - Is The Air Clearing?
In 2005, the Washington Legislature amended the Public Records Act to shorten the statute of limitations from five years to one year. See Laws of 2005, ch. 483, § 5; former RCW 42.17.410. Actions for judicial review under RCW 42.56.550 now “must be filed within one year of the agency’s claim of exemption or the last production of a record on a partial or installment basis.” RCW 42.56.550(6). Since this amendment, however, appellate courts have given the statute inconsistent treatment in cases involving single productions where no exemptions were claimed by the agency. This issue most recently arose in last week’s decision from Washington’s Court of Appeals (Division I) in Mahmoud v. Snohomish County, No. 70757-4-I (unpublished). There, the court held that the one-year statute of limitations barred all of the requestor’s claims.
Division I previously addressed this statute in Tobin v. Worden, 156 Wn. App. 507 (2010). In that case, the court held that the one-year limitations period is triggered only by a claim of exemption or the agency’s “last partial production” – meaning the production of a record that is “part of a larger set of requested records.” Id. at 514 (quoting RCW 42.56.080). Because the production in Tobin involved no exemption and the production of a single document, the court held that the one-year statute of limitations did not apply.
Division II disagreed with Tobin. Division II first addressed the case in Johnson v. State Department of Corrections, 164 Wn. App. 769 (2011). After noting that Tobin did not address the potential applicability of the two-year “catch-all” limitations period in RCW 4.16.130, the Johnson court observed that “it would be an absurd result to contemplate that, in light of two arguably applicable statutes of limitations, the legislature intended no time limitation for PRA actions involving single-document production.” Id at 777. The Johnson court did not ultimately determine which limitations period applied because the action had been filed more than two years after the agency response and was therefore barred by the catch-all limitations period in any event.
In Bartz v. State Department of Corrections Public Disclosure Unit, 173 Wn. App. 522 (2013), Division II was required to resolve this issue. Bartz involved a single production of records that occurred more than one year, but less than two years, prior to the lawsuit. Following its reasoning in Johnson, the Bartz court explained that it “would also be absurd to conclude that the legislature intended to create a more lenient statute of limitations for one category of PRA requests.” Id. at 537. Expressly rejecting Tobin, the Bartz court concluded that the legislature intended the PRA’s one-year statute of limitations to apply to requests completed by a single production of records. The court declined to follow a literal reading of the statute because doing so would lead to absurd results. Despite the apparent conflict between the Courts of Appeals, the Supreme Court denied review in Bartz. See 177 Wn.2d 1024 (2013).
With Division I’s recent decision in Mahmoud, the courts appear to be trending toward the one-year limitations period for single productions. One of the plaintiff’s public records requests in Mahmoud involved a single production that was later followed by a letter confirming that no other responsive documents existed. The plaintiff argued that this production was incomplete and therefore could not trigger the limitations period. The court disagreed, quoting language from Bartz and Johnson that it would be an absurd result to conclude that the legislature intended no statute of limitations for PRA actions involving a single production of documents. Opinion at 14-15; see also id. at 18. Regardless of whether the court considered the single production itself or the confirming letter to be the trigger, the one-year period expired at least seven months before the plaintiff’s suit was filed. Id. at 15.
Division I’s decision in Mahmoud suggests that the court has reconsidered its position on the statute of limitations in RCW 42.56.550. At minimum, it raises doubt as to the continuing precedential value of Tobin. The court cited Tobin as contrary authority in a footnote, but did not elaborate further. Of passing interest is that Chief Judge Michael Spearman, who concurred in Mahmoud, was also a concurring judge in Tobin. At present, no motion to publish the opinion or petition for review to the Supreme Court has been filed. Those deadlines are November 17 and 26, respectively.
Abandoned Claims. In West v. Gregoire, Division II of the Court of Appeals held that a PRA requestor who moves for a show cause order under RCW 42.56.550(1) abandons any claims he or she does not either (1) address in briefing, (2) mention in oral argument, or (3) otherwise specifically preserve for judicial review. Arthur West submitted a public records request to Governor Gregoire’s office. After providing West an initial five‑day letter, the Governor’s office did not further communicate for several months. And when it did, it asserted executive privilege (which was later upheld in Freedom Foundation v. Gregoire). West sued, claiming that executive privilege should not be recognized in Washington.
Some months later, West brought a show cause motion, but failed to mention in the motion or at oral argument his other PRA claims (notably, his claim that the Governor’s initial delay in production was unreasonable). Citing the detailed show cause procedures under RCW 42.56.550(1) and the public policies in favor of judicial economy and against piecemeal litigation, the court held that a .550(1) show cause hearing can function as a PRA claimant’s trial. Any PRA issue not mentioned or otherwise expressly preserved in a .550(1) show cause motion is abandoned, just like any civil claimant’s allegation not mentioned in the pleadings, not raised in response to a summary judgment motion, or unsupported at trial, is deemed abandoned.
A PRA claimant does not have to proceed by a .550(1) show cause motion, however, and can instead proceed to trial under the Civil Rules. But if the party does file a show cause motion, it must either assert every PRA issue on that motion or otherwise preserve the issue expressly. If not, the issue is abandoned.
False Starts. In Hobbs v. Washington State Auditor’s Office, also before Division II, the Court of Appeals held that a records requestor may initiate a lawsuit under the PRA only after it reasonably appears that the agency will not provide records responsive to the request. Here, the requestor sought “a large amount of technical information” related to an Auditor’s whistleblower investigation. The Auditor’s five‑day letter indicated that the office would provide records in installments. Two days after the Auditor provided the first installment, the requestor sued for alleged PRA violations. In the meantime, the Auditor’s office continued to search for and produce responsive records in rolling installments, including by correcting errors in its initial productions. Eventually, the Auditor’s office produced all responsive documents and cured all alleged violations.
Because the suit was filed during an open request that was eventually fulfilled in compliance with the PRA, the Court held that the Auditor’s office did not improperly withhold records. The Court also held that an agency does not violate the PRA if it makes every reasonable effort to comply with a PRA request and also fully cures alleged PRA violations while the request remains open. Accordingly, the Auditor’s office did not violate the PRA by improperly disclosing certain documents in its initial installments because it later corrected those errors before closing out the request.
In its final notable holding, the Court also made clear that the PRA does not require an agency to provide a reasonable estimate of the time it will take to fully respond to a request. Instead, if an agency notifies the requestor that it will provide records on an installment basis, it need only provide in its five‑day response letter the agency’s reasonable estimate of the time it will take to produce the first installment.
Case Law Update: "fullest assistance," redactions for effective law enforcement, disclosure of non-agency phone logs
The Washington Court of Appeals issued three notable Public Records Act decisions in the past few days. In Andrews v. Washington State Patrol, Division III held that an agency that fails to comply with self‑imposed disclosure deadlines does not violate the PRA if the agency acts diligently to produce the requested records. The specific records request was complex, seeking audio recordings of third‑party telephone conversations protected by attorney‑client privilege. In order to preserve confidentiality, the State Patrol developed a method to identify responsive records from over six months of recordings without actually listening to the recorded conversations. In the process, the State Patrol missed self‑imposed disclosure deadline estimates without notifying the requestor that it needed additional time to compile the records. Facing 1,000 additional public records requests at the time, the Patrol ultimately disclosed the records in less than 90 days. The Court held that the PRA’s requirement that agencies provide a “reasonable” estimated response date is not a requirement for an “exact” estimate and that the Patrol’s failure to meet its self‑imposed deadlines or to notify the requestor that additional time was needed did not violate the PRA’s “fullest assistance” provision.
In Haines‑Marchel v. Department of Corrections, the requestor sought internal investigation documents from the Clallam Bay Corrections Center. Relying on those documents, prison officials placed an inmate on “dry cell watch” in order to monitor the inmate for suspected contraband. The documents detailed allegations by three separate named inmate informants. Citing an exemption for sensitive information contained in law enforcement records, RCW 42.56.240(1), the Department released the documents but redacted the informants’ names and identifying numbers, the details of their allegations, and all information about their reliability as informants. Division II of the Court of Appeals agreed with these redactions, holding that releasing this investigative record information would undermine effective law enforcement at correction centers. Informants identified in the documents could be subject to retaliation and future informants would be “chilled” against providing information to Department officials. Similarly, the Department properly redacted pre‑printed material in the documents because those materials detailed the Department’s methods of investigation. Releasing this intelligence information would aid inmates in crafting and disguising false or deceptive accusations. However, the Court also held that other information was improperly redacted. The accused inmate’s name and assigned number, the specific rule he allegedly violated, and the investigating officer’s signature in the documents were not similarly exempt.
Last week in Nissen v. Pierce County, Division II held that text messages sent and received from a government employee’s private cell phone are public records if they relate to government business. Similarly, portions of call logs that track a government employee’s private, non‑agency cell phone could be public records for those calls that relate to government business. The more difficult question was whether the agency “prepared, owned, used or retained” the phone logs. Unlike the text messages, which were prepared and used by the employee as a government official, the cell phone logs were created by a private cellular provider and delivered to the employee in his private capacity. Accordingly, the call logs might not be “used” or “retained” by the agency even though the phone itself was used for government purposes. The Court remanded for the trial court to determine this question after developing the record. Arguably, the Court avoided a fundamental issue that could have been resolved as a matter of law: “we do not reach the question of whether [the employee’s] personal cellular phone call logs became ‘public records’ when he delivered them to the prosecutor’s office for the agency to redact.”
Foster Pepper's Regulatory & Government Affairs practice recommends reading, "Does Media Coverage of School Shootings Lead to More School Shootings?" to stay up-to-date on conversation related to the Public Disclosure Act. The Stranger originally published the article on August 11, 2014.
Court Of Appeals Holds Records Subject To Protective Order As Unduly Burdensome Not Exempt Under The Public Records Act
In Washington State Department of Transportation v. Mendoza de Sugiyama (Division II), a former employee brought an employment action against the Department of Transportation (“DOT”) and requested certain records in pretrial discovery. When the trial court granted DOT’s motion for a CR 26(c) protective order on the grounds that the request was unduly burdensome, the former employee submitted a public records request to DOT for the same records. DOT brought a separate action for declaratory and injunctive relief, arguing that the records were exempt under RCW 42.56.290 (the Public Records Act’s “controversy exemption”) because the records were “not available to a party under the rules of pretrial discovery.”
A divided panel of the court of appeals determined that the records were not exempt, holding that records subject to a CR 26(c) protective order on the grounds that they are unduly burdensome for an agency to produce are nonetheless “available” under the civil rules of pretrial discovery and therefore not exempt under the controversy exemption. The majority observed that no privilege was involved and that the protective order was aimed at the scope of the discovery request, not the content of the material sought. The majority found this distinction dispositive, and noted that the PRA specifically prohibits agencies from denying requests solely because they are overbroad. RCW 42.56.080. The majority concluded that a “more reasonable interpretation of the statutory language is that the legislature intended to exempt under the PRA only those records that would not be available to any party under universally applicable rules of discovery, rather than those records rendered conditionally unavailable to a specific litigant under the unique facts….” (emphasis in original). It also found no conflict between the PRA and the superior court discovery process.
The dissent argued that a requestor “should not be allowed to use the PRA to thwart the court’s authority to manage litigation before it, especially when that authority is carried out in close conformance with the Civil Rules.” Observing that the plain language of RCW 42.56.290 exempts material that is unavailable under the rules of pretrial discovery, one of which is CR 26(c) authorizing protective orders, the dissent would have held the records exempt from production.